Filing of an application
Principle
Since the entry into force of the EPC 2000, there is no language requirement for the filing (i.e., obtaining a filing date).
If the application is filed in an official language, no further action is required, and this official language becomes the language of the proceedings.
If the application is not filed in an official language (A14(2) EPC), it is necessary to provide a translation into one of the official languages within 2 months (R6(1) EPC). The language of this translation becomes the language of the proceedings.
Note: The provisions of A14(4) EPC do not apply to the filing of an application (thus, the deadline is indeed 2 months to submit the translation), even if the official fee reduction under R6(3) EPC is available for applicants:
- having their residence (or registered office) in one of the contracting states (or who are nationals of one of these states residing abroad),
- where this country has an official language other than German, English, or French,
- who file their application in one of these languages (or make a reference to an earlier application in one of these languages).
Filing in multiple languages
In decision T382/94, the board of appeal stated that if the annotations of the drawings were in a different language from that of the description, this had no impact on the filing date (the claims and description had been filed in German, but the drawings included text in English).
What if part of the description or a claim is in a different language from the rest of the description?
Before the entry into force of the EPC 2000, the EPO refused to grant a filing date in such situations (J18/96) on the grounds that the wording of A14 EPC 73 was:
European patent applications shall be filed in one of these languages
Today, the wording is different (A14 EPC), but similarities can still be found:
Every European patent application shall be filed in one of the official languages or, if filed in any other language, translated into one of the official languages in accordance with the Implementing Regulations.
I therefore believe that the EPO’s position would remain the same: the principle of unity of language for European patent applications would be the rule.
However, this unity applies only to the description: if the claims are in a different language, this does not pose a problem (Guidelines A-X 9.2.2, as claims are not mandatory to obtain a filing date).
Case of a divisional application
The language of filing of a divisional application must be that of the parent application or, at the applicant’s choice, the language into which the application was translated (R36(2) EPC).
Thus, if a European patent application was filed in Italian and then translated into English in accordance with A14(2) EPC, it is possible to file a divisional application in Italian or in English.
Written proceedings before the EPO
The rule
Contrary to popular belief, the applicant, opponent, etc., may use any official language of the EPO (R3(1) EPC and Guidelines A-VII 2) to respond to communications, file any document, etc. (except for documents relating to amendments to the application, Guidelines A-VII 1.2).
In reality, only the EPO is bound by the language of the proceedings (Guidelines A-VII 1.2).
Exception under A14(4)
Principle
If a person has their residence (or registered office) in one of the contracting states (or is a national of one of those states with their residence abroad) and that state has an official language other than German, English, or French, they may file any document required to be submitted within a set period in that language (A14(4) EPC).
When referring to « a person » in the preceding paragraph, the representative is disregarded (T145/85).
This language is not necessarily the language of filing.
A translation must be submitted (A14(4) EPC) at the earliest simultaneously with the untranslated document (G6/91) and within a period of 1 month from the date of submission of the document (R6(2) EPC) (and not from the end of the period), in one of the official languages of the Office, regardless of the language of the proceedings (Guidelines A-VII 2).
This translation may, if the subsequent deadline expires later, be filed (R6(2) EPC):
- within the opposition period (if the document is the notice of opposition);
- within the appeal period (if the document is the notice of appeal);
- within the period for filing the statement of grounds of appeal (if the document is the statement of grounds of appeal);
- within the period for filing a petition for review (if the document is a petition for review).
Note that if a person who cannot benefit from the provisions of A14(4) EPC attempts to file a document in an unauthorized language by submitting a translation on the same day, they cannot subsequently argue that the translation may serve as the original: since the document is only a translation, it will be deemed never to have been filed (T1152/05).
Reduction of official fees
Before April 1, 2014
If all conditions are met for the essential document of a procedural stage, the person will obtain a 20% reduction in official fees (R6(3) EPC together with A14(1) RFees) for that stage.
The essential document is:
- the description of the application for the filing fee;
- the statement specifying the extent to which the European patent is affected under R76(2)(c) EPC for the opposition fee;
- the notice of appeal (and not the statement of grounds) for the appeal fee;
- the request for examination for the examination fee;
- the request for limitation or revocation for the limitation or revocation fee;
- the petition for review for the review fee.
This reduction is a priori available in cases of multiple applicants (or co-proprietors or co-opponents, etc.), where only one meets the conditions set out below (see the wording of R6(3) EPC: « a person« ).
As of April 1, 2014
However, for filings (entering the national phase) as of April 1, 2014 (« Decision of the Administrative Council of December 13, 2013 amending Rule 6 of the Implementing Regulations to the European Patent Convention and Article 14(1) of the Rules relating to Fees« , JO 2014, A4), to benefit from this reduction, all applicants must be (R6(4) EPC and R6(7) EPC):
- a small or medium-sized enterprise;
- a natural person; or
- a non-profit organization, a university, or a public research body.
The criteria are set out in Commission Recommendation 2003/361/EC of May 6, 2003 (R6(5) EPC).
Applicants must declare their affiliation to one of the above-mentioned categories, but the EPO may request evidence in case of doubt (R6(6) EPC).
The applicant will obtain a 30% reduction in official fees (A14(1) RFees) but only with respect to:
- the filing fee;
- the examination fee.
Sanction
If the translation required under A14(4) EPC is not submitted within the 1-month period (or the extended period mentioned above), the document shall be deemed not to have been filed. The EPO shall notify the person who submitted the document (Guidelines A-VII 5).
A121 EPC is applicable to a document relating to:
- grant;
- the ex parte appeal procedure.
A122 EPC is applicable in all other cases (except for the opponent unless it concerns the statement of grounds of appeal, G1/86).
If the document that has not been translated is the cover letter accompanying a procedural act (e.g., submission of a certified copy of an earlier application), the act shall nevertheless be performed if it is possible to identify the application number to which it relates (Guidelines A-VII 5).
Special cases
Third-party observations
Third-party observations (A115 EPC) may only be filed in an official language of the EPO (R114(1) EPC) and may not benefit from the exceptions under A14(4) EPC.
Indeed, such documents are not subject to any time limit for submission.
However, the Guidelines A-VII 3.5 provide that the EPO may invite the third party, if identifiable, to provide a translation.
Publication
Publication of the application is made in the language of the proceedings (A14(5) EPC).
Amendments to the application
Amendments to the application must be filed in the language of the proceedings (R3(2) EPC and Guidelines A-VII 2).
There is no obligation to submit them within a specific time limit, and they therefore cannot benefit from the exceptions under A14(4) EPC: Indeed, the applicant is not required to file amendments; it is merely an option (A123(1) EPC); only a response to the communication is mandatory (A93(4) EPC).
Evidence
Evidence may be submitted in any language (R3(3) EPC).
However, the EPO may require a translation into the language of the proceedings, to be provided within a specified time limit (which may depend on the length of the document, Guidelines A-VII 3). If the translation is not provided in due time, the EPO may disregard this evidence.
Focus on translations
Certifications
Where a translation is required, the EPO may demand a certificate attesting that the translation is faithful to the original text (R5 EPC). This certificate must be submitted within a specified time limit. This time limit benefits from
- the provisions of A121 EPC for the applicant;
- the provisions of A122 EPC for the proprietor and the opponent in the case of the translation of the statement of grounds of appeal (G1/86).
Correction of the translation
At any time during the proceedings, it is possible to bring the translation into conformity with the text of the application as filed (A14(2) EPC).
However, if this occurs during opposition proceedings (or at least after grant), care must be taken not to contravene the provisions of A123(3) EPC.
For the correction of translations relating to documents filed within a specified time limit (A14(4) EPC), it is necessary to proceed with an amendment under R139 EPC.
Oral proceedings
The language of the oral proceedings is the language of the proceedings (R4(1) EPC), but any party may request to use:
- another official language:
- an official language of a contracting state:
- The translation into the language of the proceedings is at the expense of the requesting party (R4(1) EPC).
- another language (R4(4) EPC)
- If the EPO and the parties agree.
This request for translation must be renewed at the appeal stage (T34/90).
The EPO may allow certain exceptions regarding the translation (R4(1) EPC, in particular if the interpreter is ill and everyone agrees to proceed without translation).
Note: A translation cannot be requested to allow a third party (or one of its employees) to attend the oral proceedings because they do not understand the language of the proceedings (T2696/16).
Decisions
As decisions are an act of written procedure, the above-mentioned considerations apply.
Only a decision in a single procedural language meets the requirements of EPC Rule 111(2) regarding the reasoning of decisions.
Thus, it is not possible to incorporate passages from an opposition brief in English (without translation) into a decision issued in German (T1787/16).